Sharpe v. Rex Healthcare

The majority in the present case erred in concluding that plaintiff's claim is time barred pursuant to N.C. Gen. Stat. § 97-47 because she failed to make a claim for a change of condition within two years of defendants' last payment of indemnity compensation. N.C. Gen. Stat. § 97-47 provides in pertinent part:

[U]pon the application of any party in interest on the grounds of a change in condition, the Industrial Commission my review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded. . . . [B]ut no such review shall be made after two years from the date of the last payment of compensation . . . (emphasis added).

In the present case, the evidence of record shows that defendants admittedly failed to pay plaintiff for a ten percent permanent partial disability rating to the back, given by Dr. Fulghum and Dr. Canna. Tony Whicker, a senior claim representative for defendant Allied Claims Administration, testified that plaintiff had indeed not been paid for her permanent partial disability rating due to an "oversight." He further testified that there was not any question that the permanent partial disability rating was related to plaintiffs June 20, 1998, work-related injury.

The undersigned finds that because defendants failed through "oversight" to pay plaintiff for compensation that she is admittedly entitled to receive, the two-year tolling for a change of condition per N.C. Gen. Stat. § 97-47 has not begun. Simply put, the last payment of compensation has yet to occur and, thus, plaintiffs claim for a change of condition is not time barred. This matter should be remanded to a Deputy Commissioner for the taking of evidence and further hearing regarding plaintiff's claim for a change in condition. For these reasons, I respectfully dissent.

This 17th day of March 2005.

S/_____________ THOMAS J. BOLCH COMMISSIONER

2. Allied Claims Administration is the carrier on the risk.

3. An employee-employer relationship existed between the parties at all relevant times.

4. The plaintiff suffered a compensable injury by accident arising out of and in the course and scope of employment on June 20, 1998.

(a) Stipulated Exhibit 1: Pre-Trial Agreement

(b) Stipulated Exhibit 2: Plaintiff's medical records

(c) Stipulated Exhibit 3: Industrial Commission Forms

(d) Plaintiff's Exhibit 1: Medical Note

(e) Defendants' Exhibit 1: Transcript from hearing on October 16, 2000

Judicial notice was taken of the Full Commission Opinion Award filed on August 31, 2001.

2. Defendant-carrier made the final payment for authorized medical expenses on or about January 4, 2001, as indicated on the revised Form 28B.

3. On August 31, 2001, the Full Commission filed an Opinion and Award in this matter that contained the following Conclusion of Law: "Plaintiff refused employment procured for her suitable to her capacity; therefore, plaintiff is not entitled to compensation under the provisions of the North Carolina Workers' Compensation Act until such refusal ceases. N.C. Gen. Stat. § 97-32." The Full Commission's Opinion and Award contained the following Order: "Under the law, plaintiff's claim for workers' compensation benefits must be, and the same is hereby suspended."

4. Plaintiff did not appeal the Full Commission's Opinion and Award filed on August 31, 2001.

5. Following the filing of the Full Commission's Opinion and Award on August 31, 2001, plaintiff never approached the defendant-employer regarding returning to work.

6. Plaintiff failed to show that her unjustified refusal to return to work has ceased.

7. On October 3, 2002, plaintiff filed a Form 33 claiming, "Defendants have refused to pay TTD." Plaintiff argues she is entitled to additional indemnity compensation based upon a change of condition.

8. Plaintiff did not claim any other benefits on the Form 33 filed October 3, 2002. Specifically, plaintiff checked the box indicating a claim for "payment of compensation for days missed" and did not check the box indicating a claim for "payment of medical expenses/treatment."

9. On or about April 24, 2003, plaintiff asserted, for the first time, a claim for payment of past unauthorized medical expenses and a claim for payment of future medical expenses. These claims were raised as issues in the pretrial agreement for the hearing on April 24, 2003 before the undersigned.

10. Plaintiff has never requested a change of treating physician and has not sought approval and payment of unauthorized medical expenses within a reasonable time.

11. Plaintiff failed to make a claim for a change of condition within two years of defendants' last payment of indemnity compensation.

12. Plaintiff failed to file a Form 18M, or otherwise make a claim for additional medical compensation within two years of defendants' last payment of medical or indemnity compensation.

2. Plaintiff failed to request approval of unauthorized medical expenses within a reasonable time. N.C. Gen. Stat. § 97-25.

3. Plaintiff failed to make a claim for a change of condition within two years of defendants' last payment of indemnity compensation. Accordingly, plaintiff's claim for additional indemnity compensation based upon a change of condition is time barred. N.C. Gen. Stat. § 97-47.

4. Plaintiff failed to file a Form 18M, or otherwise make a claim, for additional medical compensation within two years of the employer's last payment of medical or indemnity compensation. Accordingly, plaintiff's claim for additional medical compensation is time barred. N.C. Gen. Stat. § 97-25.1; NCIC Workers' Compensation Rule 408.

2. Each side shall bear its own costs.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/____________ BUCK LATTIMORE CHAIRMAN

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER